Notes from Underground: Proceed with Precaution, Part I

The smoking of e-cigarettes on airplanes has been banned by the FAA. Why? Because studies have not conclusively shown that “vaping” has no adverse impacts on human health.

And why is an article ostensibly about fracking and pipelines starting with this information? Because it is a rare example of the correct application of the Precautionary Principle.
The Precautionary Principle is a crucial concept in environmental law, and its basic precept is as simple as it is important: if there is an associated risk of harm that outweighs the likely benefit of an action, that action should not be taken. In other words, don’t do things for short-term benefit – such as squeezing gas out of spent wells through hydraulic fracturing – that may have long-term negative impacts; such as, say, causing earthquakes.

Ironically, fracking is a prime example of total disregard for precaution. Fracking pioneers apparently gave little consideration to the potential danger the process might pose, and now the US Geological Survey includes “induced” earthquakes in its mapping of seismic activity (See here and here). “Induced,” of course, means caused by human activity – specifically, fracking and the use of injection wells. Yes, the industry’s lack of foresight has actually created earthquake risks in places where earthquakes were previously all but unheard of.

The argument “nobody saw that coming,” even if it were true, is not an excuse: before your company started fracking or injecting massive quantities of wastewater into the ground, you should have seen the potential for seismic repercussions. The failure to recognize the threat is the failure to use adequate precaution, and to adequately study the practice before engaging in it.

Before a new technology, product, or concept is introduced to the market, those introducing it must reasonably determine its safety to the user and to the public in general. The fossil fuel industry has not embraced this approach. More accurately, it has actively rejected it.

And this is not only true in regards to fracking, where clearly the risks were not fully understood when fossil fuel companies started shooting their toxic liquids into every available crack in the ground. Precaution has been soundly and broadly rejected by oil, gas, and coal producers in general.

Admittedly, the notion of anthropogenic climate change wasn’t a concern when coal was first burned as fuel. But the idea that burning fossil fuels could adversely impact the climate has been around since the end of the 19th century, and has been well known and understood within the industry since the 1970s. The industry’s response has not been to reduce production and exploration while the problem is more thoroughly studied, but rather to focus on the uncertainty – the grey areas of exactly how severely their products damage the environment – as a valid reason to continue poisoning the planet.

As illuminated by CSPW’s current blog series, Exxon (and later Exxon-Mobil) have contributed to unwarranted climate change skepticism by pushing this “uncertainty” argument: “How can we reduce production of our CO2-emitting products when there is still some doubt as to exactly what degree their use is posing an existential threat to humanity?”

Would anyone reasonable act this way? If you were performing some task that you then determine could, for example, result in your house becoming unfit for occupancy, how much certainty would you require before putting it on hold? How much money would it take to make it worth the risk? Enough to buy a new house?

Has Exxon-Mobil got enough money to buy a new planet?

Given that there is scientific consensus on the threat of climate change – and has been for decades – the uncertainty argument is even weaker. But they have not yet changed their tack.

Even disregarding the overwhelming evidence – not to mention common sense – that tells us that burning billions of tons of carbon-based fuels will have adverse environmental impacts, the meta-argument is irrational. “In the face of ‘uncertainty,’ we’re going to keep doing what we’re doing, despite the possibility that it will render the planet uninhabitable. Moreover, we will deny science and reason, and deceive the public and our stockholders, in order to guarantee short-term profits at the cost of long-term survival.” This is greed taken to the point of insanity.

What is the opposite of Precaution? A web search for antonyms yields words like “negligence,” “carelessness,” “recklessness,” “indifference,” and “disregard.” All good words to describe the actions of frackers and fossil fuel companies, and their evident attitude towards public well-being.

Badger-Two Medicine: The Post-Cautionary PrincipleThe case of Badger-Two Medicine represents a successful attempt to install what I will call, oxymoronically, “retroactive precaution.” Badger-Two Medicine is a site in Montana that had been under lease to Solenex – a Louisiana-based petroleum company – since the Reagan administration, but Solenex had been continuously delayed in exploiting the land. This year, the courts finally decided that the government was legally allowed to terminate the lease, determining that the lease was not legally binding. It turns out the mineral rights were leased without consideration of the land’s sacred status with the Blackfeet Tribe, and without full consideration of the environmental impacts of drilling for oil and gas in the land near Glacier National Park.

This is a great result, but it took over three decades of wasted time and resources to come to that conclusion. If precaution had been exercised in the first place, the lease would never have been given. Problem avoided.

The argument for the protection of sacred lands is attractive. Exploitation of such land by fossil fuel companies will seriously impact the cultural and religious identity of indigenous peoples. This is a fine argument, particularly given the history of mistreatment of indigenous peoples and the fact that the Blackfeet Tribe was not adequately consulted regarding the lease. But reliance on this reasoning could allow for exploitation of any land that is not considered “sacred.”

The more versatile argument is the environmental one. The Precautionary Principle was nowhere to be found when the lease was awarded in the 1980s. The requisite Environmental Impact Statement (EIS) was found legally inadequate. However, this legal adequacy is problematic. In theory, an adequate EIS in 1982 was achievable, and could have allowed for fracking in 2016. How can impacts be accurately assessed for a practice that has not yet been fully developed? Under the Precautionary Principle, this uncertainty prevents potentially adverse action. The lease, at the least, could have limited future use to practices known to be safe (it is not clear that any fossil fuel extraction can be considered truly “safe,” but at least the risks of traditional drilling are well understood).

The victory for the Blackfeet Tribe and for the environment is worth celebrating, but precaution would have avoided the issue altogether, and been more easily applicable to other such cases. Moreover, if companies like Solenex would have applied precaution to their activities, they could have been developing clean, sustainable, renewable energy for decades instead of trying to find ways to exploit fossil fuels and wasting their time, money, and energy fighting legal battles for the right to damage the environment.

Consider – and Don’t Ignore – the ConsequencesThe new US Geological Survey maps show that fracking and injection wells have created threats where there weren’t threats before. Had the industry known that fracking would create these new threats to people, property, and the environment, they would not have been able – or would not have been allowed – to pursue their short-sighted agenda.

The point is, they could have done the research necessary to determine the risk posed by their activities. Instead, they chased the money, and now we have earthquake threats in places where neither home- nor business-owners nor insurance companies had contemplated such potential harm.

Would it therefore be unreasonable to hold companies conducting fracking or well-injection liable for any resulting damages? Will they claim ignorance? Legally, harming people unintentionally is known as “negligence” (see the list of precaution antonyms above). But when the negligence is so profound that a reasonable person would have avoided it – as by making real determinations about the safety of the activity being performed – look to the antonym list again for the word “recklessness.” In legal circles, such behavior is associated with “criminal negligence,” which also has a nice ring to it.

As for Exxon-Mobil, they had all the information they needed forty years ago to begin to change their model. They, like Solenex, also could have begun investing in renewable energy for an eventual switch away from fossil fuels – which they have always known would be a finite resource in any event. Imagine where we could be if they had applied their vast resources toward safe, clean energy, instead of wasting them on exploration, exploitation, and public misinformation.

Just think where we could be if industries utilized precaution, and if they were a little more principled.

Part II of this post will give further examples of the Precautionary Principle being applied well or badly, and will reveal that what seems simple can become complicated as soon as legal and economic factors enter the discussion.

Environmental Counsel Adam Arnold worked with GAP’s clinical program while earning his J.D. from the University of the District of Columbia’s David A. Clarke School of Law, is a member of the Maryland Bar, and has an LL.M. in International Environmental Law and International Organizations from American University’s Washington College of Law.